Chapman v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 261

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Chapman v Commissioner of Police, NSW Police Force [2023] NSWCATAD 261

Hearing dates:

13 September 2023

Date of orders:

13 October 2023

Decision date:

13 October 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Andelman Senior Member

Decision:

1. The decision of the respondent is affirmed.

2. Pursuant to s49 of the Civil and Administrative Tribunal Act 2013 the hearing as it related to the Confidential Material and the Confidential Statement was conducted in the absence of the applicant his representative and the public pursuant s 59 of the Administrative Decisions Review Act 1997.

3. The respondent is not required to lodge copies of the Confidential Material or Confidential Statement with the Tribunal in accordance with s 58 of the Administrative Decisions Review Act 1997

4. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 until further order of the Tribunal the publication of the Confidential Material and Confidential Statement is prohibited pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 until further order of the Tribunal.

5. The disclosure of the Confidential Material    and Confidential Statement is restricted to the respondent the respondent’s legal representatives and the Tribunal.

6. Pursuant to s 64(1)(c) of the NCAT Act the publication or disclosure of the parts of these Reasons marked “NOT FOR PUBLICATION”, other than to the respondent (Commissioner of Police, NSW Police Force) is prohibited.

Catchwords:

ADMINISTRATIVE REVIEW –firearms licence – refusal – public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Crimes (Domestic and Personal Violence) Act 2007

Firearms Act 1996

Cases Cited:

Constantin v Commissioner of Police [2013] NSWADTAP 16

Davos v Commissioner of Police [2013] NSWADT 7

Martin v Commissioner of Police, NSW Police Service [2017] NSWADT 97

Vitaliti v Commissioner of Police, NSW Police Force [2022] NSWCATAD 16

Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Cohen Chapman (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Hartmann & Associates (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2023/00132526

Publication restriction:

1. Pursuant to s49 of the Civil and Administrative Tribunal Act 2013 the hearing as it related to the Confidential Material and the Confidential Statement was conducted in the absence of the applicant his representative and the public pursuant s 59 of the Administrative Decisions Review Act 1997.
2. The respondent is not required to lodge copies of the Confidential Material or Confidential Statement with the Tribunal in accordance with s 58 of the Administrative Decisions Review Act 1997
3. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 until further order of the Tribunal the publication of the Confidential Material and Confidential Statement is prohibited pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 until further order of the Tribunal.
4. The disclosure of the Confidential Material and Confidential Statement is restricted to the respondent the respondent’s legal representatives and the Tribunal.
5. Pursuant to s 64(1)(c) of the NCAT Act the publication or disclosure of the parts of these Reasons marked “NOT FOR PUBLICATION”, other than to the respondent (Commissioner of Police, NSW Police Force) is prohibited.

Reasons for decision

1. This is an application by Mr Chapman seeking a review of the internal review decision of the Commissioner of Police (the Commissioner) made on 14 April 2023 to refuse the Category AB firearm license.

2. Mr Chapman was issued with a firearms licence on 16 June 2016. That licence was suspended on 3 February 2021 as a result of the police making a Provisional Apprehended Violence Order (PAVO) because of an incident the applicant was involved in on 2 February 2021.

3. For the reasons that follow, the Tribunal affirms the Commissioner’s decision.

Background Facts

4. On 14 June 2013, Mr Chapman was a defendant in an Interim Apprehended Violence Order (IAVO). Mr Chapman telephoned his former girlfriend on many occasions from a private number and left messages on her phone. The IAVO was revoked on 13 September 2013.

5. There has been animosity between Mr Chapman and Mr Matthews and his friends from 2020. Mr Chapman and Mr Matthews have family connections in that their partners are sisters. Mr Chapman made reports to the police about Mr Matthews’ conduct from 2020 to 2021 on numerous occasions. The last incident reported to the police was on 14 May 2021. The allegation was that Mr Matthews, his partner and children drove past his house honking their horn and Mr Matthews threw a rock out of the car, denting Mr Chapman’s front fence.

Confidential Material

6. [NOT FOR PUBLICATION]

7. [NOT FOR PUBLICATION]

Application for a firearms licence

8. On 11 December 2022, Mr Chapman made an application for a category AB firearms licence. In the application, in response to the question ‘have you ever had a firearms licence or permit suspended or revoked, whether in NSW or elsewhere? Mr Chapman answered ‘no’. When lodging the application, Mr Chapman made a declaration that the information provided in the application was true and correct.

9. The answer was incorrect because Mr Chapman’s firearms licence was suspended on 3 February 2021.

Incident on 2 February 2021 and police’s opinion of Mr Chapman

10. Mr Chapman’s account of the incident was that he was in the car with his partner Ms McManus. They drove to the metro service station to get petrol. Mr Chapman turned from Silver Street right into Beryl street to turn into the service station but realised the fuel tank was on the other side of the car. He did a U turn on Beryl street to head back to Silver Street to go in the right way. He pulled up in the queue and saw Mr Matthew while waiting in line. He did not acknowledge him. Mr Matthew then drove off in his vehicle and connected with the driver side rear of Mr Chapman's car. Mr Chapman backed out his car trying to get the number plate. He saw Mr Matthew give him the finger when he driving away from the service station. Mr Matthew then chased him doing a U turn. Mr Chapman pulled over in Beryl street fearing for his pregnant girlfriend's safety as well as his own. He then went and picked up the kids and drove home. He reported the matter to the police who came and took statements from himself and Ms McManus. They both asked for AVOs. Mr Chapman was told that police would speak to Mr Matthews and let him know.

11. Ms McManus’ statement was that Mr Chapman was driving to fill up the car with petrol at metro service station. The car turned into Beryl street to pull into the service station than realised that the fuel tank was on the opposite side of the car. The car turned left into Silver street and went into the service station. At that time they saw Mr Matthews. His car took off and hit the back of their car. They tried to see the number plate but the car sped off quickly. They then decided to just pick up the children from her mother’s home and drove home.

12. The COPS event made at 6.15pm on 2 February 2021 by Mr Stuart based on information provided by Mr Chapman was that he was driving a vehicle and Ms McManus was in the front passenger seat. The vehicle was lined up for fuel at the metro service station. Mr Chapman and Ms McManus observed Mr Matthews leaving the inside of the service station and walked towards his vehicle. While walking towards their vehicle Mr Matthews stuck his middle finger up at them before getting into his vehicle. Mr Matthews began to drive towards the exit of the service station towards Mr Chapman’s vehicle. While passing, Mr Matthews’ vehicle collided with Mr Chapman's vehicle leaving a small tyre scuff mark on the back of side quarter panel. Mr Matthew’s vehicle then turned south onto Silver Street at high speed and left the scene without exchanging particulars Mr Chapman left the service station to attempt to obtain the registration details of Mr Matthews’ vehicle. While driving east along Beryl street, Mr Chapman observed Mr Matthews’ vehicle driving towards him at high speed. Mr Chapman pulled to the side of the road in fear that Mr Matthew’s vehicle would again collide with his. Mr Matthews’ vehicle passed his vehicle at high speed before breaking hard causing the brakes to lock up and his vehicle to skid towards the intersection of Beryl and Buck streets almost colliding with another vehicle going through the intersection.

13. On 3 February 2021, Constable Haller attended on Mr Matthews at his home. Mr Matthews told police that on the afternoon of 2 February 2021 he was refuelling his car at Metro service station. His partner, Ms McManus and their children were also in the car. Upon returning to the car, Mr Matthews saw Mr Chapman driving east on Beryl street past the petrol station. Mr Chapman performed a U turn on Beryl street and began driving back west before turning into Silver street and then turning into Metro petrol station. Mr Matthews drove past Mr Chapman’s car north on Silver street. Mr Chapman had corned Mr Matthews in the service station and fearing for his family, Mr Matthews navigated his vehicle past the toilet block and Mr Chapman’s vehicle.

14. Mr Matthews admitted that he may have hit Mr Chapman’s vehicle but there was no damage to his vehicle.

15. Mr Chapman left the service station and followed Mr Matthew’s vehicle. Mr Matthews stated that he had to drive quite fast to get away from Mr Chapman as he thought that Mr Chapman was going to rear end him. He had to ‘manoeuvre the vehicle in different ways.’

16. The COPS event states:

Police are concerned that due to the history between two families the most recent event that tensions are escalating and they will only continue to get worse as McManus is 33 weeks pregnant and the other two children are quite young police believe it is in everyone's interest of safety that an ADVO is applied for.

Cohen (Chapman) holds a current firearms licence and has one firearm listed. Police are to seize this firearm as soon as possible. CCTV footage has been viewed and supports the above events to be collected by police when it is ready.

17. It is recorded that there is no damage to property.

18. Constable Haller made a statement in these proceedings and was cross examined. Her evidence was that she was aware that Mr Chapman and Ms McManus were interviewed but she could not recall the content of their evidence. She stated that she viewed the CCTV footage that showed Mr Chapman’s car arriving after Mr Matthew’s car which she considered to support Mr Matthew’s version of events. Constable Haller stated that there was no CCTV footage of the vehicles exiting the petrol station and the CCTV footage she saw is lost. Constable Haller did not inspect Mr Chapman’s car for any damage.

19. Based on interviewing Mr Matthews and watching CCTV footage, Constable Haller formed the opinion that Mr Matthews and his family required protection from Mr Chapman due to his escalating behaviour and applied for a Provisional Apprehended Domestic Violence Order (ADVO) pursuant to ss 26 and 27 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

20. As a result of the ADVO, s 23 of the Act required the police to take steps to remove any access to firearms held by Mr Chapman.

21. After making inquiries, Constable Haller identified that there had previously been other firearms registered at Mr Chapman’s home address to his step-father, Mr Gould that had been seized previously.

22. On 28 April 2021, Constable Haller was on duty when Mr Chapman reported alleged harassing behaviour by Mr Matthews. Mr Chapman reported that Mr Matthews was driving past Mr Chapman on two occasions within a twenty minute window and sticking his middle finger up at him. Mr Chapman expressed the view to Constable Haller that Mr Chapman considered it unfair that Mr Matthews had an ADVO against him and that because of Mr Matthew’s conduct the ADVO should be reciprocal.

23. Constable Haller formed the view that:

Mr Chapman's behaviour and demeanour was not typical of someone who had genuine fears for their safety. Instead, it was my opinion that the complaint was one that form part of the ongoing acrimonious association between the parties, that the likely intent of the complaint was in support of the pending ADVO court matter against Mr Chapman.

24. Constable Haller formed the view that it was not necessary or appropriate to apply for an additional ADVO against Mr Matthews, that Mr Chapman’s behaviour and demeanour was not typical of someone who had a genuine fear for their safety and that Mr Chapman was making the complaints about Mr Matthews because of the acrimonious association between them and Mr Chapman’s likely intent to use the complaints in support of the impending ADVO count matter.

25. Constable Haller formed the view, based on the two interactions she had with Mr Chapman that she ‘was very uncomfortable with the idea of him holding a firearms licence and would not trust him to use a firearm safely.’ Constable Haller’s evidence was that she formed the view that Mr Chapman was ‘involved in significant and frequent conflict within the (local) community.’

26. Constable Haller stated that she observed Mr Chapman’s disappointment and frustration with the process following the ADVO and the removal of his firearm licence. She also stated that the community of Broken Hill would ‘likely hold significant concerns if Mr Chapman were to hold a firearms licence.’ In paragraphs 32 and 33 of the statement, Constable Haller stated:

I hold serious concerns that Mr Chapman may engage in similarly aggressive behaviour again if circumstances were to arise where he was in dispute with another member of the community. I consider that Mr Chapman's recent history an interaction with police display a propensity to hold onto and not move on from conflict in my experience there is a level of community expectation that persons who display aggressive behaviours such as those displayed by Mr Chapman and … would not be given the privilege of gun ownership.

27. Constable Haller stated that she did not ‘trust’ Mr Chapman to use the firearms safely and referred to a number of negative interactions he has had with the police in Broken Hill NSW and conflict with Mr Matthews.

Interim Apprehended Violence Order made on 31 October 2021 (withdrawn on 30 September 2022)

28. The Internal Review made on 14 April 2023 from which Mr Chapman seeks review in this Tribunal identified a number of alleged facts. One of them was an assertion that on 31 October 2021 Mr Chapman was a defendant in an IAVO. The letter referred to a COPS event.

29. Before the Tribunal, Mr Chapman made no reference in his evidence to this IAVO. During cross examination, Mr Chapman’s evidence was that he had no knowledge of it. Constable Haller’s evidence was that she had some recollection of serving the IAVO on Mr Chapman. This evidence is supported by her name appearing on the COPS event. Next to the heading ‘order served at/by.’

30. An IAVO is an application made by a private person which is determined by a court. The record indicates that the IAVO was issued on 29 October 2021 and withdrawn or dismissed 31 October 2021.

Relevant Legislation

31. Section 63 of the Administrative Decisions Review Act 1997 (ADR Act) provides that, in determining an application for review, the Tribunal is to make the correct and preferable decision, having regard to the material before it, and any applicable written or unwritten law.

32. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act), the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act.

33. The principles and objects of theFirearms Act 1996(NSW) (the Act) are set out in s 3, relevantly:

Principles and objects of this Act

(1) The underlying principles of this Act are:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms,

...

(2) The objects of this Act are as follows:

...

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms

34. Section 11(7) of the Act is in the following terms:

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

35. Section 70 of the Act states:

A person must not, in or in connection with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular.

Mr Chapman’s Case

36. Mr Chapman would like a firearms licence so that he could develop a career as a professional kangaroo harvester.

37. Mr Chapman submitted that the question on the firearms application form ‘Have you ever had a firearms licence or permit suspended or revoked, whether in NSW or elsewhere?’ was confusing and it was no surprise that he answered it incorrectly.

38. Mr Chapman filed no evidence as to why he answered the question as he did. During cross examination Mr Chapman admitted that he made a mistake in answering the question about his licence being suspended or revoked in the past.

39. Mr Chapman submitted that he was the victim of Mr Matthews and that in any event the animosity between them has not occurred since 2021.

40. Mr Chapman relied on two character references from Mr Roberts and Mr Kemp. Mr Roberts had been shown a copy of the Notice of Refusal. In his opinion, Mr Chapman has learned from past experiences to walk away and not be in a situation before it escalates. Mr Roberts has held a firearms licence for 40 years and believed that Mr Chapman would use and store the firearms in a responsible manner and that he would never hurt or harm the public with a firearm.

41. Mr Kemp had also been shown a copy of the Notice of Refusal. Mr Kemp stated that he believed that Mr Chapman was remorseful and regretful as to what occurred a few years ago and he has matured since that time.

Commissioner’s Case

42. The Commissioner submitted that the Tribunal should affirm its decision to not issue Mr Chapman with a firearms licence because it is not in the public interest because Mr Chapman falsely provided information on the firearms application form and due to Mr Chapman’s history with police and Mr Matthews. The Commissioner relied on the evidence it has filed pursuant to s58 of the ADR and the confidential material.

43. In regard to the public interest, the Commissioner submitted that Mr Chapman’s conduct following the granting of the firearms licence in June 2016 was of concern.

Consideration

Section 70 of the Firearms Act/Incorrect information on the application form

44. Section 70 of the Firearms Act states that a licence may be revoked if the licensee supplied information which was (to the licensee’s own knowledge) false or misleading in a material particular in, or connection with, the application for the licence.

45. Mr Chapman gave no evidence as to why he incorrectly answered the question. During cross examination he admitted that he made a mistake in answering the question.

46. I accept Mr Chapman’s evidence that he made a mistake in answering this question on the application form and reject the Commissioner’s submission that Mr Chapman knowingly provided false information in contravention of s70 of the Act.

47. I also reject the applicant’s submission that the question is confusing or that little weight ought to be placed on the fact that Mr Chapman answered the question incorrectly.

44. As stated in Vitaliti v Commissioner of Police, NSW Police Force [2022] NSWCATAD 16 at [99] – [101], a person’s understanding of the firearms licencing scheme is relevant to the question of public interest. Failure to understand the critical importance of providing true and correct information on the application form is a failure to understand that the objects of the Act are there to promote public safety by imposing strict controls on the possession and use of firearms.

45. The Tribunal has concerns about Mr Chapman’s understanding of the critical importance of providing true and correct information to the Commissioner when applying for a firearms licence because he failed to lead any evidence as to why the error occurred and his submissions significantly downplayed the importance of providing true and correct information on the application form.

Incident on 2 February 2021 and police’s attitude to Mr Chapman

50. Constable Haller was involved in the AVO matter for Mr Matthews. She took a statement from Mr Matthews on 3 February 2021. She formed the view that Mr Matthews’ version of events was correct and that he and his family required protection from Mr Chapman. A different police officer took a statement from Mr Chapman. The CCTV footage relied on by Constable Haller was lost.

51. Mr Chapman’s evidence was that he was the victim and Mr Matthews who was calling him a ‘pedo’ and was harassing and intimidating him in public places and that the police failed to properly investigate his complaints against Mr Matthews.

52. The Tribunal is not a position to make factual findings as to what occurred on 2 February 2021. It seems from all accounts that there was some kind of car chase and some contact between the cars. However, Mr Chapman lays the blame on Mr Matthews and Mr Matthews told Constable Haller that the fault lay with Mr Chapman. Constable Haller accepted Mr Matthews’ version of events.

53. I note that Mr Kemp stated that Mr Chapman is remorseful and regretful as to what has taken place in the past, however Mr Chapman did not express any regret or remorse for his past conduct before the Tribunal. The Tribunal has some hesitation in finding that Mr Chapman was always the victim in the interactions with Mr Matthews and finds that both Mr Chapman and Mr Matthews were involved in inappropriate conduct towards each other over the years.

54. The opinions formed by Constable Haller about Mr Chapman are entirely negative. The Tribunal has no reason to doubt Constable Haller’s professional judgement or her recall of the interactions she has had with Mr Chapman. The Tribunal accepts Constable Haller’s evidence that Mr Chapman has been involved in conflict within the community and was making complaints against Mr Matthews because of the acrimonious association between them and to support the impending ADVO court matter.

55. There is evidence that a court issued a IAVO against Mr Chapman on 29 October 2021 and on 31 October 2021 it was withdrawn or dismissed. Constable Haller’s evidence was that it was made by a private person. Mr Chapman’s evidence was that he had no knowledge of this IAVO.

56. The Tribunal places no weight on this IAVO as there is no evidence about why or by whom the IAVO was actioned. No factual findings can be made as to its merit or relevance for the purpose of considering s11(7) of the Act.

Confidential Information

57. I have considered the confidential information and submissions. The confidential information assists the Commissioners submission that the correct and preferable decision is to affirm the decision of the Commissioner to refuse to issue Mr Chapman with a firearms licence as it would be contrary to public interest within the meaning of s11(7) of the Act.

Conclusion

58. The concept of public interest is well known. The interests of the whole community are given priority over private interests of the person wishing to hold a firearms licence. The notion of public interest includes concerns about ‘public protection, public safety and public confidence in the administration of the licencing system.’ Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33].

59. Public safety is a primary consideration and holding a firearms licence is a privilege; s(3)(1)(a) of the Act. Holding a firearms licence is conditional on the need to ensure public safety. Misuse of firearms can result in catastrophic consequences. Davos v Commissioner of Police [2013] NSWADT 7 at [117]; Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28.

60. In Martin v Commissioner of Police, NSW Police Service [2017] NSWADT 97 at [66] the Tribunal observed:

The question of risk is therefore not viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety.

61. I have considered Mr Chapman's conduct as a whole including his attitudes and character within the surrounding circumstances. I am not satisfied that there is no real and appreciable risk to public safety, including strict compliance with the firearms licencing scheme if Mr Chapman was to be issued with a firearms licence. I find that based on the confidential information together with Mr Chapman’s lack of insight into the seriousness of providing incorrect information on his firearms licence application in regard to a question that was material to the applicant and his interactions with Mr Matthews, the correct and preferable decision is that it is in the public interest for the Tribunal to affirm the decision of the Commissioner to refuse Mr Chapman's firearms licence.

62. The Tribunal orders:

1. The decision under review is affirmed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

12 October 2023 - further amendments required

13 October 2023 - Decision date amended.

Decision last updated: 13 October 2023